Sturgis v. R & L Carriers, Inc.

• Decision Date: 13 August 2021
• Docket Number: CAUSE NO. 3:19-CV-440 DRL-MGG
• Parties: Barbara STURGIS, Plaintiff, v. R & L CARRIERS, INC., R & L Transfer, Inc., and Greenwood Motor Lines, Inc., Defendants.
• Court: U.S. District Court — Northern District of Indiana

554 F.Supp.3d 976

Barbara STURGIS, Plaintiff,

v.R & L CARRIERS, INC., R & L Transfer, Inc., and Greenwood Motor Lines, Inc., Defendants.

CAUSE NO. 3:19-CV-440 DRL-MGG

United States District Court, N.D. Indiana, South Bend Division.

Signed August 13, 2021

Kevin C. Smith, Smith Sersic, Munster, IN, Stephen D. Phillips, PHV, Pro Hac Vice, Stephen J. Phillips, PHV, Pro Hac Vice, Terrence M. Quinn, PHV, Pro Hac Vice, Phillips Law Offices, Chicago, IL, for Plaintiff.

Catherine A. Breitweiser-Hurst, Edward W. Hearn, Johnson & Bell Ltd., Crown Point, IN, Gregory D. Conforti, Johnson & Bell Ltd., Chicago, IL, for Defendants.

OPINION & ORDER

Damon R. Leichty, Judge David Sturgis died in a tragic trucking accident on Interstate 94. Barbara Sturgis filed this wrongful death action, individually and as administrator of her late husband's estate. She tendered David Gibson, a partner at Vocational Economics, Inc., to testify about the decedent's future lost income. The defense moved to exclude this testimony as unreliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court now grants the motion.

BACKGROUND

The defendants admit fault for the accident, so this case proceeds solely on the issue of damages [ECF 101 at 1]. For that purpose, Ms. Sturgis retained David Gibson to develop an estimate of her late husband's lost earning capacity because of his death. Mr. Gibson opines that the loss lay within $267,501 to $379,398 when accounting for personal consumption [ECF 108-1 at 5].

Mr. Gibson has a bachelor's degree in accounting and master's degrees in both rehabilitation counseling and finance [Id. 45]. He describes his degrees as "degrees in subdiscipline economics," with "finance being the discipline that explicitly projects cash flows in the future" [ECF 108-2 at 15]. Since 1993, he has worked as a senior analyst at Vocational Economics, Inc., where he previously held the positions of president (2007-2011) and chief operating officer (1993-2007) [ECF 108-1 at 45]. In his current role, Mr. Gibson "provide[s] assessments of lost earnings due to death, disability, or loss of employment" and "consult[s] with attorneys and experts on analysis and application of disability statistics of earnings, employment, and worklife expectancy" [Id. ].

Mr. Gibson completed a vocational economic assessment. He says the "vocational economic rationale presents both the philosophy and the methodology employed in assessing the loss" and is the "standard employed by [his] firm in conducting a vocational economic assessment" [Id. 5]. His method involves three steps: first, calculating the annual earning capacity; second, calculating the worklife expectancy; and third, calculating the present value of the loss [Id. 6, 14].

Annual earning capacity answers "how much the person will make per year" [ECF 108-2 at 16]. Mr. Gibson considered Mr. Sturgis’ annual earning capacity to be $43,906 [ECF 108-1 at 7]. He arrived at this number based on Mr. Sturgis’ "age, education, and previous work experience" and his average earnings from 2013 to 2017, excluding 2016.¹ Mr. Gibson adjusted this number to account for Mr. Sturgis’ "age earnings profile," which assumes "typical growth patterns of males with a GED or an alternate credential and no disability" [Id. ].

Worklife expectancy answers "how many years" the person is going to work [ECF 108-2 at 17]. Mr. Gibson considered Mr. Sturgis’ worklife expectancy in terms of a range: 9 to 12.6 years [ECF 108-1 at 8]. The low end of the range, 9 years, was based on statistics for "an average male with a GED or an alternate credential and no disability" [Id. 7]. The high end of the range, 12.6 years, was based on the fact that Mr. Sturgis had "historically defied the statistical average of employment for his cohort" (having worked as a truck driver for 18 years), and "could reasonably have been expected to continue had his death not taken place" [Id. ].

To calculate the present value of the loss, Mr. Gibson "assume[d] that future increases in real wage growth will be offset by the real rate of interest or discount over the remaining worklife expectancy" [Id. 8]. Here, he found the gross loss to be somewhere between $426,636 (based on a worklife expectancy of 9 years) and $605,101 (based on a worklife expectancy of 12.6 years) [Id. ]. Additionally, he used data from the Consumer Expenditure Survey published by the U.S. Bureau of Labor Statistics to provide a range of loss that accounts for personal consumption [Id. ]. That range is $267,501 to $379,398.

STANDARD

Expert opinions must be reliable and helpful. Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Appreciating that trial instructions tell jurors to weigh opinion testimony the same as that of ordinary fact witnesses, see, e.g., 7th Cir. Pattern Civ. Jury Instr. 1.21 (rev. 2017), an expert nonetheless enjoys considerable latitude when testifying, see Fed. R. Evid. 702 - 704, and jurors often tend to heed that testimony because of the expert's aura of authority and knowledge, United States v. Jett , 908 F.3d 252, 267 (7th Cir. 2018). So the court gatekeeps beforehand. The court decides the testimony's reliability and fitness before the jury ever hears it. Daubert , 509 U.S. at 594, 113 S.Ct. 2786. This duty extends to all proposed expert testimony. See Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

A witness may testify in the form of an expert opinion when (1) the witness is "qualified as an expert by knowledge, skill, expertise, training, or education," (2) the testimony is "based on sufficient facts or data," (3) the testimony is "the product of reliable principles and methods," and (4) the witness has "reliably applied the principles and methods to the facts of the case" in such a way that the testimony will "help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. Although the analysis remains at all times flexible, Daubert , 509 U.S. at 594, 113 S.Ct. 2786, these fundamentals at the start can be restated formulaically just for ease of understanding:

Opinion + Qualifications + Facts + Validation + Fit = Admissible Expert Testimony.

The proponent of expert testimony must establish its admissibility by a preponderance of the evidence. Varlen Corp. v. Liberty Mut. Ins. Co. , 924 F.3d 456, 459 (7th Cir. 2019).

With opinion in hand, a witness must have credentials or experience that truly denotes the individual as an expert in the relevant field. Experts draw their truths from specialized "experience confessedly foreign in kind to [the jury's] own." Hon. Learned Hand, Historical and Practical Considerations Regarding Expert Testimony , 15 Harv. L. Rev. 40, 54 (1901). Scientific knowledge may come from professional degrees or use of the scientific method. Other knowledge may presuppose that a person has spent significant time gaining hands-on experience without need of formal education or laboratory work. However obtained, qualifications must provide a foundation for an expert to answer the specific question. See , e.g. , Gayton v. McCoy , 593 F.3d 610, 617-18 (7th Cir. 2010) (allowing physician to opine about effects of vomiting on body but not pharmacological effects of drugs on heart); United States v. Parra , 402 F.3d 752, 758 (7th Cir. 2005) (allowing agent to opine on modus operandi of narcotics dealers based on training and experience in counter-surveillance). Knowledge can be developed in myriad ways. It just can't be "subjective belief or unsupported speculation." Daubert , 509 U.S. at 590, 113 S.Ct. 2786.

An opinion witness must next have a sound factual basis before being declared an expert. Fed. R. Evid. 702 ; Daubert , 509 U.S. at 590, 113 S.Ct. 2786. Even if eminently qualified, experts cannot offer opinions based solely on their say-so (what lawyers call ipse dixit ). See Kumho Tire , 526 U.S. at 157, 119 S.Ct. 1167 ; Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Expert testimony must be based on sufficient and known facts. Fed R. Evid. 703 ; Daubert , 509 U.S. at 590, 113 S.Ct. 2786 ; see , e.g. , Wasson v. Peabody Coal Co. , 542 F.3d 1172, 1176 (7th Cir. 2008) (evidence of one sale was an insufficient basis to calculate an average of sales over twenty years); Ervin v. Johnson & Johnson, Inc. , 492 F.3d 901, 904-05 (7th Cir. 2007) (excluding expert testimony because the "mere existence of a temporal relationship" was an unreliable basis to show a causal relationship between medication and symptoms).

Expert testimony must also originate from reliable principles and methods. Fed. R. Evid. 702. Scientific testimony may be validated if the theory or technique can be or has been tested, if it has been subjected to peer review and publication, if it has a known or potential error rate, and if it enjoys general acceptance in the relevant scientific community. Daubert , 509 U.S. at 593-94, 113 S.Ct. 2786. These concerns may or may not bear on technical or experience-based opinions, appreciating that the analysis remains ever nimble to meet their substance, and so long as the witness "employs in the courtroom the same level of intellectual rigor that characterizes the practice of [the] expert in the relevant field." Kumho Tire , 526 U.S. at 152, 119 S.Ct. 1167 ; accord Jenkins v. Bartlett , 487 F.3d 482, 489 (7th Cir. 2007).

Expert opinion must last fit the case. Opinions must be tied to case facts and issues. Kumho Tire , 526 U.S. at 150, 119 S.Ct. 1167. The court must determine whether an expert's "reasoning or methodology properly can be applied to the facts in issue." Daubert , 509 U.S. at 593, 113 S.Ct. 2786. The opinion must help the jury decide an issue of consequence. Expert testimony that "does not relate to any issue in the case is not relevant, and ... non-helpful." Id. at 591, 113 S.Ct. 2786. A...